Citation Nr: 1805972
Decision Date: 01/30/18 Archive Date: 02/07/18
DOCKET NO. 10-27 944 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent for left shoulder bursitis and tendonitis prior to July 6, 2016 and higher than 20 percent since July 6, 2016.
2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left knee.
3. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
N.K., Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1971 to July 1992.
This appeal to the Board of Veterans' Appeals (Board) is from April 1998 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional office (RO) in Montgomery, Alabama.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Remand is required for the Veteran's claims of entitlement to an increased rating for his left shoulder and knee disabilities to obtain adequate examinations.
For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2017), pertaining to functional impairment. In applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner must also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2017). Also, VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016).
The Veteran was afforded VA examinations in June 2017 pursuant to the Board's May 2017 remand. The Veteran continued to report pain of the knees and left shoulder. Although not explicitly stated in the examination report, the Veteran appears to have reported experiencing flare ups, as the examiner completed that portion of the report, concluding that she could not offer an opinion as to the impairment from flare ups because the Veteran was not experiencing such a flare up during the examination.
Unfortunately, the reason for the examiner's inability to offer an opinion concerning flare ups is that, absent observing such a flare up, any opinion would be mere speculation. That rationale is no longer an acceptable one. See Sharp v. Shulkin, No. 16-1385 (U.S. Vet. App. Sept. 6, 2017). As explained in Sharp, VA guidelines and Court caselaw anticipate that examiners will offer flare up opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans.
Consequently, the June 2017 examinations do not provide all the findings necessary to adjudicate the claims on appeal.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for appropriate VA examination to assess the severity of the Veteran's service-connected left shoulder and bilateral knee disabilities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided.
The examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the left and right shoulder and left and right knee in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so.
The examiner must describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology. The examiner must express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner must portray the degree of any additional range of motion loss due to pain on use or during flare-ups.
2. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2012).
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Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).